Global Environmental Constitutionalism in the Anthropocene

Louis J Kotzé

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN: 9781509926794
• eBook ISBN: 9781509907595
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

There is persuasive evidence suggesting we are on the brink of human-induced ecological disaster that could change life on Earth as we know it. There is also a general consensus among scientists about the pace and extent of global ecological decay, including a realisation that humans are central to causing the global socio-ecological crisis. This new epoch has been called the Anthropocene. Considering the many benefits that constitutional environmental protection holds out in domestic legal orders, it is likely that a constitutionalised form of global environmental law and governance would be better able to counter the myriad exigencies of the Anthropocene. This book seeks to answer this central question: from the perspective of the Anthropocene, what is environmental constitutionalism and how could it be extrapolated to formulate a global framework? In answering this question, this book offers the first systematic conceptual framework for global environmental constitutionalism in the epoch of the Anthropocene.

1

Introduction

I.Human Domination

There is persuasive evidence suggesting we are on the brink of human-induced ecological disaster that could change life on Earth as we know it. The United Nations Environment Programme, in its authoritative Global Environmental Outlook 5, confirms that anthropogenic drivers of environmental change are ‘growing, evolving and combining at such an accelerating pace, at such a large scale and with such widespread reach that they are exerting unprecedented pressure on the environment’.¹ While there is always the threat of single or multiple-event natural disasters occurring (such as volcanic eruptions, massive earthquakes or a meteor impact), the eventuality of human-induced ecological disasters is not a distant possibility; it is increasingly considered imminent.² Human-induced ecological disasters, such as climate change, refer to the collection of human impacts as well as to the cumulative totality and effects of these impacts on the Earth and its systems.³ These disasters are not only ‘environmental’, but also reach into various other spheres of human experience as a result of threat multipliers that have cascading effects,⁴ as climate change with its ability to ignite and aggravate social, economic and political dilemmas vividly illustrates.⁵

In the wake of dire warnings such as those from UNEP, there is an increasing realisation that we are living in a period in Earth’s geological history that signifies human domination of the Earth and its complex systems.⁶ The extent and effects of this human domination and environmental imprint is astounding and it is caused by ‘global-scale forcing mechanisms’ that might lead to state shifts in, or critical transitions of, the Earth’s biosphere.⁷ These human forcing mechanisms are broadly divided into human population growth and resource consumption (the two main drivers underlying all other drivers); habitat transformation and fragmentation; energy production and consumption; and climate change.⁸ Statistics suggest the following with respect to these forcing mechanisms:

Population growth: While the Earth’s natural resources have not increased, the world population has grown from 2.5 billion in 1950 to 7 billion people today;⁹ a number that is predicted to increase to 9.5 billion in 2050, and which will compound human demands exceeding the carrying capacity and critical thresholds of Earth systems.¹⁰

Consumption: During the twentieth century, global economic output grew more than 20-fold, while materials extraction expanded to approximately 60 billion tonnes per year, with global gross domestic product (GDP) increasing by a factor of 24.¹¹ These indicators of consumption have been showing no signs of abating into the twenty-first century.

Habitat transformation and fragmentation: Vast areas of the Earth’s surface are being converted from natural forests to agricultural areas with 37.4 per cent of the planet’s land surface being used for agricultural production and urban areas, while 50 per cent of wetlands have been lost as a result.¹²

Energy production and consumption: Humans are drastically modifying the way energy flows through the global ecosystem.¹³ From 1992 to 2008, per-person energy consumption increased globally at a rate of 5 per cent annually, leading to significant spikes in greenhouse gas (GHG) emissions (ranging from 310 parts per million in 1950 to 391 parts per million in 2011, with half the total rise in atmospheric CO² since the pre-industrial era having occurred in the last 30 years).¹⁴ The global carbon sink in the biosphere has also increased from approximately 2 billion tonnes of carbon per year in the 1960s to approximately 4 billion tonnes in 2005.¹⁵

Climate change: Most recently in its Fifth Assessment Report, the Intergovernmental Panel on Climate Change (IPCC) determined with greater certainty than ever before that ‘[h]uman interference with the climate system is occurring’ and that climate change is observably affecting various socio-ecological systems with possible disastrous consequences.¹⁶ This prediction was subsequently corroborated by the World Meteorological Organization (WMO), which showed that in 2013, concentration of CO² in the atmosphere was 142 per cent of the pre-industrial era (1750), and of methane and nitrous oxide, 253 per cent and 121 per cent respectively.¹⁷ The cumulative result is an unprecedented spike in the rate of ocean acidification, which could severely inhibit the ocean’s functions as the primary driver of the planet’s climate and attenuator of climate change.¹⁸ With an expected 4°C warming, climate change is projected to become the dominant driver of impacts on ecosystems, superseding other drivers such as land-use change.¹⁹

Despite deliberate resistance from the neo-liberal growth-without-limits agenda,²⁰ there seems to be general consensus among scientists about the pace and extent of global socio-ecological decay, including a realisation that humans are central to causing this crisis. Representing a collective estimation that is based on the joint research of four major global research programmes,²¹ the Amsterdam Declaration on Global Change of 2001, confirmed that the Earth system has moved well outside its range of natural variability exhibited over the last half million years.²² Clearly, the human impact on the Earth system cannot today only be characterised simply as the degree in change compared to the pre-Industrial Revolution period, but increasingly also as a difference in the kind of changes that humans affect;²³ changes that might very well mark a distinct new geological period in the Earth’s history. These changes physically manifest in and are exemplified by, among others, the damning of rivers and building of sluices; alteration of the Earth’s atmosphere as a result of GHG emissions which have reached their highest levels in 400,000 years; interference with natural oceanic cycles; and alteration of the Earth’s surface through mining and other forms of land use such as urban sprawl.²⁴

II.The Anthropocene’s Global Socio-Ecological Crisis

This vaguely apocalyptic narrative underlies scientists’ recent suggestion that we have probably entered a human-dominated geological epoch called the Anthropocene. The Anthropocene was first introduced in a 2000 publication by Eugene F Stoermer and Paul J Crutzen as a term of art expressing the geological significance of anthropogenic change.²⁵ Emphasising the central role of mankind as a major driving force in modifying the biosphere, the term Anthropocene suggests that the Earth is rapidly moving into a critically unstable state, with Earth systems gradually becoming less predictable, non-stationary and less harmonious as a result of the global human imprint on the biosphere.²⁶ In the Anthropocene, humanity has become a geological agent in much the same way as a volcano or meteor—able to change the Earth and its systems, and possibly even to cause a mass extinction.²⁷ The existence of a boundary that separates the current harmonious Holocene epoch (still formally viewed as being ‘current’)²⁸ from the human-dominated and unstable Anthropocene, has not been officially defined though.²⁹ A proposal to formalise the Anthropocene as an epoch of the geological timescale is being prepared by the Anthropocene Working Group for consideration by the International Commission on Stratigraphy.³⁰

With its formal acceptance pending, the Anthropocene has meanwhile managed to grab the attention of a growing trans-disciplinary cohort of scholars and it has become a major academic enterprise, even recently culminating in the launch of two dedicated scientific journals.³¹ The burgeoning trans-disciplinary and global interest that the Anthropocene is attracting suggests that it is becoming a popular lens through which to consider the pure scientific, and increasingly the social aspects of past, present and future global environmental change.³² To date, much of the work on the Anthropocene remains in the sphere of the natural sciences, although Anthropocene debates are now increasingly penetrating the social sciences realm.³³ As Robinson puts it: determining the existence of the Anthropocene ‘is a scientific one, not a socio-economic or cultural determination, yet its greatest implications may lie in the realm of the social sciences’.³⁴ In Baskin’s view, this is so because ‘the term [Anthropocene] needs to make sense to, and be embraced by, social scientists, with their typically messy, contested and historically contingent ways of understanding the workings of human societies’.³⁵ The body of work that is being done around the Anthropocene suggests that we are seeing the steady emergence of a trans-disciplinary platform upon which to bridge the prevailing divide between the social world of philosophy, anthropology, sociology, politics, law and economics on the one hand, and the material world of engineering and natural science on the other;³⁶ aptly reflecting, perhaps, the collapse of old epistemological distinctions in the face of the new, sobering reality of the Anthropocene.

In tandem with its instigating this trans-disciplinary scientific confluence, the Anthropocene is rapidly transcending its initial use as a ‘mere rhetorical device’,³⁷ permitting deeper epistemological and ontological enquiries into our regulatory interventions that seek to mediate the human-environment interface.³⁸ In doing so, the Anthropocene fulfils a useful function to the extent that it could assist the broader scientific community solidifying the idea of humanity as an Earth system driver; aiding understanding of anthropogenic Earth system processes;³⁹ and fostering deeper political, social and cultural awareness of human-induced environmental changes.⁴⁰ Realising within this context that ‘[n]avigating the anthropocene [sic] has … become a key challenge for policy-makers at all levels of decision-making … to prepare—politically, legally, socially and economically—for the adaptation to those global environmental changes that can no longer be avoided’;⁴¹ provides a central impetus and motivation to also commence with a wholesale re-evaluation of the socio-political, legal and broader regulatory interventions that humans use to mediate our relations with one another and with other non-human Earth system entities.

III.The Anthropocene’s Global Socio-Ecological Crisis and the Law

To this end, the Anthropocene mindset is notably beginning to infiltrate the legal, and more specifically the environmental law discourse, providing a new perspective for (environmental) lawyers to consider the role of law in mediating the human-environment interface during a period of a global socio-ecological crisis. Realising that law ‘is deeply implicated in the systems that have caused the end to the Holocene, and at once is central also to the reforms needed to cope with the emerging Anthropocene’,⁴² allows an opening up, as it were, of hitherto prohibitive closures in the law, of the legal discourse more generally and of the world order that the law seeks to maintain, to other understandings of global environmental change (such as the Anthropocene) and ways to mediate this change. These closures are countering the new type of thinking that is both required and at once instigated by the Anthropocene mindset because, as Grear understands it, the closures concern a world order that is hegemonic through which it produces limits and a stifling sense of monolithic ideology that closes down the space for other modes of being and thinking by resisting such interventions or engagements with its dominant structures and modes of operation.⁴³

Increasingly (albeit hesitan...

Table of contents

• Cover
• Dedication
• Title Page
• Preface
• Contents
• 1. Introduction
• 2. Law and the Anthropocene’s Global Socio-Ecological Crisis
• 3. Constitutionalism
• 4. Global Aspects of Constitutionalism
• 5. The Fundamentals of Environmental Constitutionalism
• 6. The Prospects of Environmental Constitutionalism in the Anthropocene
• 7. A Vision of Global Environmental Constitutionalism in the Anthropocene
• 8. Conclusion
• Bibliography
• Index
• Copyright Page